Jackson and Mitchell considered – IKEA Justice

Last week I attended a seminar hosted by the Leeds Law Society with a panel of Judges giving their comments on and answering questions about life just over one year on in the post Mitchell world. His Honour Judge Gosnall opened the seminary by giving a rather witty and also insightful address in which he said he likened a defending Mitchell to being about as popular as Sepp Blatter trying to defend the World Cup being held in Qatar. Indeed, the approach to the “Jackson” reforms as set out in the decision in Mitchell is not universally popular.

The decision in Mitchell is now facing a direct challenge in the form of three conjoined appeals which have been heard in the Court of Appeal this week in respect of cases which had been struck out or suffered other sanctions: Decadent Vapours Ltd v Bevan & Ors, Denton & Ors v TH White and TDS v Limited and Davies.

In one case counsel described practicing in the post Mitchell climate as like having to litigate whilst crossing a series of trip wires. In another counsel submitted: ‘This case is a plain example of where the pursuit of rigour and the enforcement of rules has become an end of itself. The court has lost sight of its essential function which is the administration of justice.’

I have sympathy with both submissions. Given that the case is being heard by the Master of the Rolls and Lord Justice Jackson, it must have been an entertaining place to be. The result will be handed down soon.

I can only speak for my peer group, which is to say counsel and judges who have been around a bit and seen civil litigation in practice for a good few years both before and after the CPR “revolution”. These are people who have worked at the coal face of work-a-day litigation for a combined tally of perhaps some hundred plus years. The reaction here and echoed elsewhere is largely negative. They say that if anything costs have increased as lawyer scramble to make applications to make sure they aren’t sued, hours are spent in preparing the ghastly Form H, and litigation has in part descended into an exercise in tick box form filling. It doesn’t matter if what you do is not very good, or even wrong, provided it is done by some real or perceived deadline, and there is the constant risk of satellite litigation. That said, I also think that Jackson can be defended in some part.

How should our civil justice system be run? By what principles should the system be governed? These are the issues at the heart of the original Woolf Reforms which introduced the CPR, and the Jackson review. Here are my thoughts.

First of all, the system should not be too concerned about the needs of multinational companies and oligarchs who choose to forum shop and argue about their charter-parties and libel cases in the RCJ. These cases make some counsel well off and add not insignificantly to the balance of payments, but on the whole these corporations and people can look after themselves. They have the money to buy the best, and it doesn’t’ really matter how you construct the system, it will work for them, or they will just construct their own, and call it “arbitration”.

The first ideal then is that the system should be available to anyone who has a serious case to argue or complaint to make. We have heard a lot about Magna Carta in the past few weeks, much of it from a historical point misconceived. However it does set in motion an idea that was later developed into a crucial principle of justice, that the system should be open to every citizen.

The real issue here is of course costs. After 25 years of litigation “in the trenches” I am acutely – really acutely – aware that there is no substitute for spending time in preparing a case at every stage, and also that cases which judges habitually describe as “straight forward” maybe anything but. They are usually straightforward with the benefit of hindsight with the additional secure vantage point of being on the literal and moral high ground of the bench. There is another point too, which is that just because a case is of low or medium value, it is bound to be simple, whereas high value claims for the rich and mighty do justify great time and expense. There is no such corollary. The first case I ever saw in mini pupilage was about a defective oil tanker worth squillions. It was about as complicated as buying a faulty new car. Now go and deal with the ins and outs of a taxi firm partnership…

But with that caveat, some firms and counsel in cases which even though they justify real attention charge amounts which I find outrageous and wholly mystifying. This in itself is one of the great blots on the legal system. Costs have to be controlled.

The second point that many litigants may be helped by being guided to alternative forms of resolving their disputes – and that is fine. But the other side of that coin is that court sometimes needs to hear cases, when in the present climate there is often a reluctance to do so, for reasons both good (avoiding risk for litigants) and bad (insufficient court time and resources to deal with matters).

The third point is that the system needs to be relatively open and proceed with relative speed. As part and parcel of this the court should be prepared to step in and make orders which prevent parties messing about. I have no problem with “robust” orders, even though I am heartily sick of the word.
The fourth point is that clients need to be able to put forward the whole of their case without undue hindrance.

Finally, you need good decision makers.

Now, none of that is in any way hostile to the essence of the “Jackson” reforms. In fact I would suggest that they are all in direct accord with it. The problem lies in the application of these principles. It is a more fundamental one, and it has to do with philosophy and perceptions. It is not necessarily a problem with rules, but with the way in which the rules are processed in the mind.

The problem is that the rules are made by lawyers, interpreted by lawyers, and thus are subject to the intellectual analysis which they can never withstand, for two reasons. First, no rule can cater for every situation. Second, because rules of themselves are neutral. They are like a sack. It is what is inside it that that make sack stand up. Third, they are over analysed which is actually a slack habit which lawyers are encouraged from an early age to think is being clever. It isn’t. It is just counting the twigs and forgetting to look at the forest. In short, they only work well if they are applied with good sense and that mystical quality, good judgment.

One of the stated aims of the applicants in this week’s trio of appeals before the Court of Appeal is to obtain greater clarity about how Mitchell is to be applied in practice. That may be possible in part, but to do it you need to change the underlying philosophy and mentality. Look at Mitchell itself. Even though he may have been be a government minister, Mr. Mitchell engaged the services of a relatively small firm – two partners, I heard. Such firms act under very considerable pressure of time and resources which are unknown to the “Magic Circle” of City firms, and their major commercial rivals. They were indeed late in filing their costs budget. They were indeed in breach of the rules. But, as I have heard a hundred practitioners say, in 99% of cases a DJ will not have had the chance to read the papers before the hearing anyway. I can well imagine the glee with which the lawyers for the News Group (I doubt if it was what we used to disparagingly call in the trade “Dog & Co”, as in “one man and his dog” would have fastened on Mr. Mitchell’s solicitors’ error. Oh what fun! And then the hearings and litigation devoted to sanction…and on an on.

There are two errors in the Mitchell case. One is that, as others have said, it elevates the rule above the proportionate consequences of breach and thus creates, and does not relieve, the risk of injustice. The second is that it violates what is, or should be, the cardinal principle of what the Jackson reforms are supposed to be all about. At the Leeds Law Society seminar I mentioned above, District Judge Jordan made what I thought was a very important point. He said that the intention was never to turn Costs Case Management Hearings into elaborate and bitterly contested mini trials in themselves. They were intended to be relatively brief and take a general and pragmatic view. I completely agree with that. Costs budgeting should be simple. I could, were I so minded, fix the budgets for the two sides in the Mitchell case in about 10 minutes. Or two. How about a £750,000 each side cap, gentlemen; that seems proportionate. Now, how do you want to allocate divide it up…. There: job done. So all the guff about the News Group’s lawyers not being allowed to prepare properly in advance was just that. Tactical guff.

I am tempted to describe the Jackson reforms, the Mitchell system and the present under funding of the court system as resulting in an IKEA type justice system: looks alright in the picture, but when you get it home the instructions are rubbish and there are lots of bits missing. But I think that would be a little harsh on IKEA, from whom I have purchased many admirable products, including my desk. However there is something the Court of Appeal might learn from our American cousins. I came across something this week on Twitter. There is a highly successful, high quality retailer called Nordstrom. Inc, based in Seattle. For many years, new employees were given a copy of the Nordstrom’s Employee Handbook – a single 5-by-8-inch (130 mm × 200 mm) gray card containing 75 words:

Welcome to Nordstrom

We’re glad to have you with our Company. Our number one goal is to provide outstanding customer service. Set both your personal and professional goals high. We have great confidence in your ability to achieve them.

Nordstrom Rules: Rule #1: Use best judgment in all situations. There will be no additional rules.

Please feel free to ask your department manager, store manager, or division general manager any question at any time.